United States v. Randolph Rodman

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                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10470

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01047-ROS-2

 v.
                                                 MEMORANDUM*
RANDOLPH BENJAMIN RODMAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                             Submitted May 12, 2016**
                              San Francisco, California

Before: McKEOWN, SACK***, and FRIEDLAND, Circuit Judges.

      Randolph Rodman appeals the district court’s application of the U.S.

Sentencing Guidelines on remand for resentencing after our decisions in United

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
States v. Rodman, 776 F.3d 638 (9th Cir. 2015), and United States v. Rodman, 596

F. App’x 548 (9th Cir. 2015). Rodman argues that the district court engaged in

impermissible double counting by applying an enhancement for committing an

offense wherein “any firearm . . . had an altered or obliterated serial number,”

U.S.S.G. § 2K2.1(b)(4)(B), in sentencing Rodman for convictions under 18 U.S.C.

§ 922(k) and 26 U.S.C. § 5861(g) (Counts 62 and 65, respectively), both of which

involved an element of obliterating a serial number. We affirm the district court’s

sentencing under the harmless error doctrine. See United States v. Munoz-

Camarena, 631 F.3d 1028, 1030 & n.5 (9th Cir. 2011) (per curiam).

      Harmless error review applies where the district court “performs the

sentencing analysis with respect to an incorrect Guidelines range that overlaps

substantially with a correct Guidelines range such that the explanation for the

sentence imposed is sufficient even as to the correct range.” Id. at 1030 n.5. Here,

Rodman argues for an error in double counting only with respect to Counts 62 and

65. He identifies no double counting error with respect to the sentences for the

remainder of the fifteen counts of conviction, each of which was to run

concurrently, and at least some of which would have received the same base

offense level under U.S.S.G. § 2K2.1(a)(5) because they “involved a firearm

described in 26 U.S.C. § 5845(a).” Further, the U.S.S.G. § 2K2.1(b)(4)(B)


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enhancement could have been, and in fact was, applied to at least one of these same

counts. Rodman would therefore have received the same sentence even if the

district court did not apply the enhancement to the convictions under Counts 62

and 65. Accordingly, any double counting error on Counts 62 and 65 was

harmless.

      AFFIRMED.




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